Citation Nr: 0627659
Decision Date: 09/01/06 Archive Date: 09/12/06
DOCKET NO. 05-07 394 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Fort
Harrison, Montana
THE ISSUE
Entitlement to an initial rating in excess of 30 percent from
September 6, 2001 to October 17, 2004 and from January 1,
2005.
REPRESENTATION
Veteran represented by: Vietnam Veterans of America
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
P. Boominathan, Associate Counsel
INTRODUCTION
The veteran had active duty for training from April 1964 to
October 1964 and active duty from June 1968 to November 1969.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of a July 2003 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Fort Harrison,
Montana.
In June 2005, the veteran had a hearing before the
undersigned Veterans Law Judge. A transcript of the hearing
is associated with the claims file.
The Board notes that the veteran was issued a temporary total
disability rating from October 18, 2004 to December 31, 2004
due to hospitalization.
FINDING OF FACT
From September 6, 2001 to October 17, 2004 and from January
1, 2005, the veteran's post-traumatic stress disorder (PTSD)
is manifested by severe hypervigilance, anxiety/panic attacks
two to four times a week, flashbacks, disturbed sleep,
avoiding crowds, intrusive thoughts, a lack of personal
hygiene, difficulty adapting to stressful circumstances, and
difficulties in maintaining close relationships.
CONCLUSION OF LAW
The criteria for a 70 percent evaluation, but not more, for
post-traumatic stress disorder from September 6, 2001 to
October 17, 2004 and from January 1, 2005 have been met. 38
U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5110 (West 2002 & Supp.
2005); 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Duties to Notify & Assist
The Veterans Claims Assistance Act of 2000 (VCAA), (codified
at 38 U.S.C.A.
§§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp.
2005)), imposes obligations on VA in terms of its duty to
notify and assist claimants. Under the VCAA, when VA
receives a complete or substantially complete application for
benefits, it is required to notify the claimant and his
representative, if any, of any information and medical or lay
evidence that is necessary to substantiate the claim. 38
U.S.C.A. § 5103(a) (West 2002 & Supp. 2005); 38 C.F.R. §
3.159(b) (2005); Quartuccio v. Principi, 16 Vet. App. 183
(2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21
(2004) (Pelegrini II), the United States Court of Appeals for
Veterans Claims (Court) held that VA must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; (3) that the claimant is expected to provide; and
(4) request that the claimant provide any evidence in his
possession that pertains to the claim.
By letters dated November 2001 and March 2004, VA advised the
veteran of the essential elements of the VCAA. The veteran
was advised that in order to establish an increased rating
claim, the evidence would need to show that his disability
had worsened. VA also informed him that it would make
reasonable efforts to help him get the evidence necessary to
substantiate his claim but that he must provide enough
information so that VA could request any relevant records.
It told him that it was responsible for obtaining any
evidence held by a government agency. The veteran was also
informed that if he had any evidence in his possession
pertaining to the claim, he should submit it to VA. The
November 2001 and March 2004 letters, therefore, provided the
required notice of the four aforementioned elements.
The Board finds that any defect with respect to the timing of
the VCAA notice requirement was harmless error. Mayfield v.
Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds,
444 F.3d 1328 (Fed. Cir. 2006). Though the veteran received
notice of the first three elements of the VCAA prior to the
initial unfavorable agency decision, he only received notice
of the fourth element after this decision. Regardless, the
veteran has had ample opportunity to respond to the most
recent March 2004 letter, supplement the record, and
participate in the adjudicatory process after the notice was
given. After the March 2004 notice, the case was then
readjudicated by the RO in a February 2005 supplemental
statement of the case (SSOC).
During the pendency of this appeal, on March 3, 2006, the
Court issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which
held that the VCAA notice requirements apply to all five
elements of a service connection claim. Those five elements
include: (1) veteran status; (2) existence of a disability;
(3) a connection between the veteran's service and the
disability; (4) degree of disability; and (5) effective date
of the disability. A letter addressing these elements has
not been sent to the veteran; however, the veteran has not
been prejudiced by such. Specifically, he meets veteran
status, he is service- connected for post-traumatic stress
disorder, he is aware of the evidence necessary to establish
higher evaluations for post-traumatic stress disorder, and
how effective dates are assigned. See Bernard v. Brown, 4
Vet. App. 384 (1993). Thus, any error in the failure to
issue a letter addressing these elements is harmless.
VA has obtained VA medical records, private medical records,
and social security records. VA has provided the veteran
with multiple examinations during the appeal.
The Board therefore finds that VA has satisfied its duty to
notify (each of the four content requirements) and the duty
to assist pursuant to the VCAA.
See 38 U.S.C.A. §§ 5102 and 5103 (West 2002 & Supp. 2005); 38
C.F.R.
§§ 3.159(b), 20.1102 (2005); Pelegrini II, supra; Quartuccio
v. Principi, 16 Vet. App. 183 (2002). The veteran has not
claimed that VA has failed to comply with the notice
requirements of the VCAA.
Increased Rating
The veteran asserts that the service-connected post-traumatic
stress disorder is worse than contemplated by the current
evaluation.
The veteran's service-connected disability is rated as
follows:
30 percent from September 6, 2001 to October 17,
2004
30 percent from January 1, 2005
Disability evaluations are determined by the application of a
schedule of ratings, which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155;
38 C.F.R. Part 4. In a claim for a greater original rating
after an initial award of service connection, all of the
evidence submitted in support of the veteran's claim is to be
considered. In initial rating cases, separate ratings can be
assigned for separate periods of time based on the facts
found, a practice known as 'staged' ratings. See Fenderson
v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2.
The determination of whether an increased evaluation is
warranted is based on review of the entire evidence of record
and the application of all pertinent regulations. See
Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the
evidence is assembled, the Secretary is responsible for
determining whether the preponderance of the evidence is
against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49,
55 (1990). If so, the claim is denied; if the evidence is in
support of the claim or is in equal balance, the claim is
allowed. Id. Where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria for that rating. Otherwise, the lower rating
will be assigned. 38 C.F.R. § 4.7.
The service-connected post-traumatic stress disorder is
evaluated under Diagnostic Code (DC) 9411. The regulations
establish a general rating formula for mental disorders. 38
C.F.R. § 4.130. Ratings are assigned according to the
manifestation of particular symptoms. However, the use of
the term "such as" in 38 C.F.R.
§ 4.130 demonstrates that the symptoms after that phrase are
not intended to constitute an exhaustive list, but rather are
to serve as examples of the type and degree of the symptoms,
or their effects, that would justify a particular rating.
Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly,
the evidence considered in determining the level of
impairment under § 4.130 is not restricted to the symptoms
provided in the Diagnostic Code. Instead, VA must consider
all symptoms of a claimant's condition that affect the level
of occupational and social impairment, including, if
applicable, those identified in the DSM-IV (AMERICAN
PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL
OF MENTAL DISORDERS (4th ed. 1994)). Id.
Under 38 C.F.R. § 4.130, Diagnostic Code 9411, the criteria
and evaluations are as follows:
Total occupational and social impairment, due to such
symptoms as: gross impairment in thought processes or
communication; persistent delusions or hallucinations;
grossly inappropriate behavior; persistent danger of hurting
self or others; intermittent inability to perform activities
of daily living (including maintenance of minimal personal
hygiene); disorientation to time or place; memory loss for
names of close relatives, own occupation, or own name - 100
percent.
Occupational and social impairment, with deficiencies in most
areas, such as work, school, family relations, judgment,
thinking, or mood, due to such symptoms as: suicidal
ideation; obsessional rituals which interfere with routine
activities; speech intermittently illogical, obscure, or
irrelevant; near- continuous panic or depression affecting
the ability to function independently, appropriately and
effectively; impaired impulse control (such as unprovoked
irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a worklike setting); inability to establish and
maintain effective relationships - 70 percent.
Occupational and social impairment with reduced reliability
and productivity due to such symptoms as: flattened affect;
circumstantial, circumlocutory, or stereotyped speech; panic
attacks more than once a week; difficulty in understanding
complex commands; impairment of short- and long-term memory
(e.g., retention of only highly learned material, forgetting
to complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; difficulty in
establishing and maintaining effective work and social
relationships - 50 percent.
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a preponderance of the evidence is against
the claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
The Board has carefully reviewed the evidence of records and
finds that, resolving all reasonable doubt in favor of the
veteran, the evidence supports the grant of a 70 percent
evaluation for post-traumatic stress disorder from September
6, 2001 to October 17, 2004 and from January 1, 2005. In a
May 2003 letter from the veteran's daughter, she stated that
he had trouble remembering to take his pills and was nervous.
In a July 2003 VA examination, an examiner stated that the
veteran's post-traumatic stress disorder was manifested
through nightmares, exaggerated startle response,
hypervigilance, intrusive thoughts of trauma, survivor's
guilt, an underlying mood of irritability, and times when
concentration is less intact. In a June 2003 letter from his
friend, she detailed that the veteran had problems with
concentration, anger, aggressiveness, memory, and the ability
to take his medications. She specifically described that the
veteran had issues maintaining his personal hygiene and
acting appropriately. Treatment records from October 2003 to
July 2004 show that the veteran had nightmares, was tense,
got mad, had panic attacks three to four times a week,
experienced sleep disturbance, had intrusive memories &
flashbacks, and had a startle response. His GAF ranged from
52 to 58.
An August 2004 record from a VA therapist notes that the
veteran made irrelevant conversation, was repetitious,
avoided crowds, had flashbacks twice a month, was
hypervigilance, had anxiety attacks two to four times a week
and had disturbed sleep. An October 2004 VA examination
found the veteran to be of average intelligence with
satisfactory grooming and hygiene. The veteran described
symptoms of nightmares, hypervigilence and trouble relaxing.
The examiner stated that the veteran maintained good eye
contact, and that he did not appear to be experiencing
psychological distress in the form of anxiety and depression
overtly, but described his underlying mood as irritable and
anxious. There was no lack of concentration or attention
span noted and his thinking was logical and goal oriented.
A letter from the veteran's VA therapist dated June 2005
described the veteran's speech as circumlocutory, obscure and
illogical. She stated that the veteran "holes up" in his
apartment for four to five hours a week, three to four times
per week. She related that the veteran experienced
aggressive panic attacks, short term loss of memory and
severe hypervigelence.
At the veteran's June 2005 hearing, he testified that he had
trouble sleeping and avoided crowds. He also testified to
having memory problems and thinking about Vietnam for half of
his day.
The above-described symptoms establish that the veteran's
post-traumatic stress disorder causes occupational and social
impairment with deficiencies in most areas, such as work,
family relations, judgment, thinking and mood. Though there
is no evidence of suicidal ideation and VA examiners
consistently described the veteran as being logical,
oriented, and as not neglecting his personal appearance,
there is competent evidence that the veteran has panic
attacks several times a week where he is unable to leave his
apartment. Additionally, though VA examiners have stated
that the veteran's speech is logical, the VA therapist's
letters from June 2005 and August 2004 describe the veteran's
speech as repitious, circumlocutory, obscure and illogical.
Additionally, though the VA examiners have noted that the
veteran's hygiene to be normal, of record is a letter from
the veteran's friend who specifically states that the veteran
requires assistance with hygiene. It is noted that the
veteran used to live with this friend and she assisted him on
a daily basis. She is therefore competent to report on that
which she has personal knowledge and has seen. See Espiritu
v. Derwinski, 2 Vet. App. 492 (1992); United States v. Brown,
540 F.2d 1048, 1053 (10th Cir.1976) (witnesses may testify
"upon concrete facts within their own observation and
recollection-that is, facts perceived from their own senses,
as distinguished from their opinions or conclusions drawn
from such facts"), cert. denied, 429 U.S. 1100, 97 S.Ct.
1122, 51 L.Ed.2d 549 (1977). Though the she may be an
interested party, this does not affect her ability to offer
competent testimony relating to the veteran's hygiene.
Cartright v. Derwinski, 2 Vet.App. 24, 25 (1991).
Finally, the criteria for a 70 percent evaluation include
"difficulty in adapting to stressful situations." The
veteran clearly has difficulty in establishing and
maintaining effective personal relationships. In addition,
the veteran testified that he had difficulty adapting to
stressful situations at his workplace.
The veteran has been assigned GAF scores ranging from 52 to
60. The GAF score is a scale reflecting the "psychological,
social, and occupational functioning on a hypothetical
continuum of mental health-illness." DIAGNOSTIC AND
STATISTICAL MANUAL OF MENTAL DISORDERS 46-47 (4th ed. 1994).
GAF scores ranging from 41-50 are defined as "serious
symptoms (e.g., suicidal ideation, severe obsessional
rituals, frequent shoplifting) OR any serious impairment in
social, occupational, or school functioning (e.g., no
friends, unable to keep a job). Id. GAF scores ranging from
51-60 are defined as "moderate symptoms (e.g., flat affect
and circumstantial speech, occasional panic attacks) OR
moderate difficulty in social, occupational, or school
functioning (e.g., few friends, conflicts with peers or co-
workers). Id. In this case, though the GAF scores ranging
from 52 to 60 only reflect moderate symptomatology, the Board
finds that other medical evidence supports a 70 percent
disability evaluation from September 6, 2001 to October 17,
2004 and from January 1, 2005. The medical evidence shows
that the veteran has experienced symptomatology warranting a
70 percent disability rating from the initial grant of
service connection, throughout the appeals process.
The Board finds, however, that the veteran's post-traumatic
stress disorder symptoms do not meet the criteria for a 100
percent evaluation. The veteran does not meet any of the
criteria listed under the 100 percent evaluation. For
example, the veteran does not have total social impairment,
as he continues to have relationships with his children and a
few friends. As noted by the October 2004 VA examiner, there
is no evidence of a thought disorder or disorientation as to
time or place. As noted above, the veteran has consistently
been described as being oriented. VA examiners have
commented on the veteran being articulate and his ability to
describe his emotions. Additionally, there is no evidence of
persistent delusions or hallucinations or grossly
inappropriate behavior or persistent danger of hurting self
or others. Though there is some evidence, from the veteran
and his friend, that he is unable to perform activities of
daily living (including the maintenance of minimal personal
hygiene) and short term memory loss, these symptoms are not
comparable in severity to the symptoms contemplated for the
100 percent evaluation. The evidence, specifically the
veteran's testimony, indicates that the veteran is still able
to function in some part independently and communicate with
others. The symptoms required for a 100 percent evaluation
contemplate a person who is not in touch with reality and
cannot remember his own family's names for the reasons
listed above.
Additionally, though the veteran has testified that the
reason he is unable to work is due to the post-traumatic
stress disorder, there is competent medical evidence to the
contrary. Both VA examiners, social security records, VA
treatment records show that the veteran is unable to work due
to a physical limitation, specifically, a heart condition.
The veteran is competent to report his symptoms. To the
extent that he asserted his service-connected post-traumatic
stress disorder warranted an increased evaluation, the Board
agrees and has granted a 70 percent evaluation from September
6, 2001 to October 17, 2004 and from January 1, 2005.
However, to the extent that he warrants an evaluation in
excess of 70 percent, the Board finds that the preponderance
of the evidence is against such finding for the reasons
stated above. The Board is responsible for weighing all of
the evidence and finds that the evidence supports the grant
of a 70 percent evaluation but that the preponderance of it
is against an evaluation in excess of 70 percent for post-
traumatic stress disorder. The benefit-of-the-doubt rule is
not for application. Gilbert, 1 Vet. App. at 55.
Review of the record reveals that the RO has expressly
considered referral of the case to the Under Secretary for
Benefits or the Director, Compensation and Pension Service
for the assignment of an extraschedular rating under 38
C.F.R.
§ 3.321(b)(1) (2005). This regulation provides that to
accord justice in an exceptional case where the schedular
standards are found to be inadequate, the field station is
authorized to refer the case to the Under Secretary or the
Director, Compensation and Pension Service for assignment of
an extraschedular evaluation commensurate with the average
earning capacity impairment. The governing criteria for such
an award is a finding that the case presents such an
exceptional or unusual disability picture with such related
factors as marked interference with employment or frequent
periods of hospitalization as to render impractical the
application of the regular schedular standards.
The Court has held that the Board is precluded by regulation
from assigning an extraschedular rating under 38 C.F.R. §
3.321(b)(1) in the first instance, however, the Board is not
precluded from raising this question, and in fact is
obligated to liberally read all documents and oral testimony
of record and identify all potential theories of entitlement
to a benefit under the law and regulations. Floyd v. Brown,
9 Vet. App. 88 (1996). The Court has further held that the
Board must address referral under 38 C.F.R. § 3.321(b)(1)
only where circumstances are presented which the Under
Secretary or Director of VA's Compensation and Pension
Service might consider exceptional or unusual. Shipwash v.
Brown, 8 Vet. App. 218, 227 (1995). Having reviewed the
record with these mandates in mind, the Board finds no basis
for further action on this question. VAOPGCPREC. 6-96
(1996). The Board notes that though the veteran was once
hospitalized for post-traumatic stress disorder, he has been
compensated for this time period. The Board does not find
that the evidence has shown marked interference with
employment based solely on the post-traumatic stress
disorder symptoms, for reasons expressed above. Therefore,
an extraschedular rating is not warranted.
ORDER
A 70 percent evaluation for post-traumatic stress disorder
from September 6, 2001 to October 17, 2004 and from January
1, 2005 is granted, subject to the controlling regulations
applicable to the payment of monetary benefits.
____________________________________________
JEFF MARTIN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs